As a consequence of her Dec. 30 ruling, the defendants in Crawford v. American Legion Ambulance Association, 08-cv-2338, will not have to pay more than $600 per hour when they depose the plaintiff’s medical expert, leaving the plaintiff to pick up the difference unless the expert agrees to lower his rate.

The expert, John Ratliff, an assistant professor of neurosurgery at Thomas Jefferson University Medical College in Philadelphia, charges $5,000 for the first hour of deposition and $2,000 for every hour thereafter.

His court appearances also come at a high price: $12,000 per day and rising to $15,000 when he has to go out of state, as in this case.

Plaintiff Vernon Crawford claims he was rear-ended by an ambulance in 2007, resulting in myelopathy and loss of spinal function. He was treated by Ratliff, consulted with him about the possibility of surgery and has designated him as a medical expert.

Lee Eckell, of Post & Schell in Princeton, N.J., who represents the defendants, American Legion Ambulance Association and ambulance driver Robyn Crispin, wants to depose Ratliff.

Under the Federal Rules of Civil Procedure, the party seeking discovery is the one who has to pay for the deposition. But Rule 26(b)(4)(C) requires discovery seekers to pay only a "reasonable fee for time spent."

Crawford’s attorney, David Heim, of Bochetto & Lentz in Philadelphia, moved on Aug. 21, asking for a ruling that Ratliff’s charges were reasonable in light of his qualifications and highly specialized expertise.

Heim’s certification described Ratliff as a "well respected author, lecturer and researcher" with 15 peer-reviewed publications to his credit and "subspecialty expertise in peripheral nerve disorders, as well as neurosurgical evaluation and treatment of nerve compression syndromes and peripheral nerve trauma, including complex reconstructive peripheral nerve surgery."

The fees to be paid Ratliff were from a schedule provided by Thomas Jefferson University’s Department of Neurosurgery, which said those rates had been paid in other cases, without reduction, stated Heim.

He also related his efforts to obtain other expert fee schedules for comparison by calling around to other area hospitals.

The Hospital of the University of Pennsylvania and Temple University Hospital both informed him their neurosurgeons do not do expert witness work, while two other places, Hanehmann University Hospital and the Washington Brain and Spine Institute, said they would check but never got back to him, he wrote.

Cooper University Hospital, however, provided an expert fee schedule for David Clements, a board-certified orthopedic surgeon who does spinal surgery. Clements charges $8,500 for in-court testimony and up to $4,500 for a deposition, rates Heim argued are commensurate with Ratliff’s.

Eckell countered with 3rd Circuit precedent that set reasonable expert fees at $200 to $500 per hour, though none of the cases involved a neurosurgeon.

He also highlighted the disparity between Ratliff’s fees and those for two other plaintiffs’ medical experts, one who charged $1,500 for the entire deposition and the other $500 per hour.

U.S. Magistrate Judge Karen Williams acknowledged that neurosurgery is a highly specialized area of practice and, thus, "a reasonable fee for a neurosurgeon may be well above a reasonable fee for other types of experts." She also called it surprising that neither side had provided information about deposition fees charged by a neurosurgeon with credentials similar to Ratliff’s.

She called "immensely instructive" a case from the District of Colorado she found through own research, Grady v. Jefferson County, 249 F.R.D. 657 (2008), which held that a neurosurgeon’s published fee of $2,000 per hour for deposition testimony was grossly excessive. The expert, Richard Spiro, chief of spine surgery at the University of Pittsburgh Medical Center, was willing to reduce his fee to $1,000 per hour for the case, a prisoner’s civil-rights suit alleging inadequate medical care, where the two Colorado surgeons acting as defense experts were charging $450 per hour. The Grady court found a reasonable hourly rate for Spiro was no more than $600 per hour.

Williams chose that same amount, noting Spiro practiced in the same state as Ratliff and had equally impressive credentials.

To avoid having to pay Ratliff’s hefty court appearance fee, Heim had also requested permission to videotape Ratliff’s trial testimony right after the deposition.

He argued that the contrast between the court appearance charge and the $2,000 per-hour cost of obtaining canned trial testimony right after deposition qualified as "exceptional circumstances" under Rule 32(a)(3)(E).

Williams denied the request, finding it would result in immense prejudice to the defendants. They would have to jump right into trial questioning without the chance to review the deposition transcript or refer to it and would have less time to prepare for cross-examination, she pointed out.

Heim says the fee set by the court is more than the $250 to $350 per hour courts typically allow for medical expert testimony and more than the defense was initially willing to pay. He hopes Ratliff will agree to accept the $600 rate, since his client will have to pay any overage.

Eckell declines comment.

New Jersey Law Journal
by Mary Pat Gallagher
January 06, 2010
Source: Law.com

In the recent New York case of Andrikopoulos v. Gach, the plaintiff was a twenty-four year old single woman who suffered burns to her face and body when she was a young girl. The resulting scarring required more than fifty surgeries. She was employed in her family’s diner where a radio disc jockey, Bolts, saw her. Bolts subsequently discussed Andrikopoulos with his radio disk jockey co-host Gach on their radio show, identifying the location of the diner. He also stated that he saw a woman working there who had burns on her face.

The two disc jockeys made inflammatory remarks about the waitress’s appearance, further commenting on how great it was for the restaurant to give someone who looks like that a job. People who knew the Plaintiff recognized that it was Andrikopoulos who the Defendant disc jockeys were ridiculing and advised her of the derogatory comments made by the disc jockeys.

Subsequently, the disc jockeys derogatory comments were uploaded onto the radio station’s website as a podcast which was later removed after numerous complaints.

Following the show Andrikopoulos suffered severe emotional distress making it extremely difficult for her to go out in public. She then sued the disc jockeys and the company that owned the radio station claiming the intentional infliction of severe emotional distress. The Defendants claim that their statements were protected by the first amendment and that any damages she suffered were due to choosing to listen to the broadcast months later. The case was ultimately settled for $ 1,000,000.00.

Barnes, 71, was driving her car when a van broadsided her after allegedly running a red light. Barnes suffered numerous injuries, including massive internal injuries, requiring a splenectomy; bleeding on the brain; a punctured heart; and multiple pelvic fractures. As a result of the injuries, Barnes had to be placed in a medically induced coma for several days. Her past medical costs were about $756,700. A retiree, Barnes did not claim lost income.

Barnes sued the driver and his employer under a theory of respondeat superior, alleging negligent operation of a vehicle. Plaintiff alleged the driver was distracted because he was using the global positioning system function on a cell phone while driving.

Defendants admitted liability at trial, and the parties settled for $4.1 million, which the employer’s insurance will cover.

If your case involved another driver who was inattentive for any reason, then click on “CONTACT US or call The Cantor Simon Law Group for a free initial consultation today!

The Brookovers were both injured and brought suit against Roberts Enterprises, Inc., the lessee of the land, claiming Roberts was negligent in allowing its cow to enter the highway. (Brookover v. Roberts, 1 CA-CV 05-0444) Roberts moved for Summary Judgment, arguing that, as a matter of law, per Carrow Co. v. Lusby, 167 Ariz. 18, (1990), it could not be found negligent for merely failing to prevent its cattle from entering the highway. In their Response, the Brookovers argued that the facts of each case had to be considered to determine whether the accident was the result of the mere failure to prevent cattle on the highway. They also argued that Roberts was aware through its ranching experience that having an unfenced, paved, high-speed highway traversing grazing land would result in more collisions between automobiles and cows than would be the case where the road was dirt and unimproved.

The Trial Court granted Roberts’s motion for Summary Judgment and, after denying the Brookover’s Motion for Reconsideration, Judgment was entered in favor of Roberts. The Brookovers filed an Appeal. In the Appeal, The Appellate Court affirmed the Trial Court ruling that a livestock owner is not legally responsible to a motorist injured when cattle wandered from unfenced pasture onto the roadway in “open range” territory, “merely” because the owner knowingly placed cattle on unprotected land next to a high speed roadway. The Arizona Court of Appeals held that the owners “knowledge of the risk” based on experience with other ranches and other roadways did not show notice of risk on this particular ranch.

The court did hold that the Brookover’s knowledge that cows had been present on other sections of the roadway, although never in the area of this ranch, was sufficient to put them on notice of the danger. Therefore, the Brookover’s could not recover money from the Ranch owner.

In 1998 while Mr. Felder was taking batting practice, he hit a ball that ricocheted off a concrete lip in the batter’s box, and the ball bounced back up at him, striking him in the left eye. His eye bled and it was ultimately determined that he fractured his orbital bone, ruptured his cornea, and suffered damage to his retina. At trial, the jury initially awarded him eight million dollars in damage and reduced that amount by 25% based on Mr. Felder’s contributory negligence. The defendants appealed and the case came back for a retrial. On retrial he was award seven million dollars and the jury reduced that amount by 30% based on Mr. Felder’s contributory negligence.

Physiotherapy again appealed, claiming that using an expert witness to speculate about Mr. Felder’s future income and future contracts was inappropriate. The Court disagreed and held, when determining what constitutes “reasonable certainty” as to the amount of damages in a person injury action, the key consideration must be what is “reasonable” under the circumstances of that particular case. The Court went on to state, “No one can say with complete certainty whether Felder would, or would not, have been promoted to the Major Leagues or how long he may have played there. We can say, however, as the jury did, that his eye injury prevented him from having that chance.”